Jurisdiction
Responsibility and Liability
Responsibility
Everyone is responsible for ensuring a harassment and discrimination-free workplace
Liability
People can be held liable for their own actions or even the actions of other.
An employer may be liable for harassment committed by employees outside of the normal parameters of the workplace or working hours if it has implications or repercussions in the workplace.
Examples may include incidents that occur during company-initiated social events such as holiday parties, baseball tournaments, business trips, conferences and workshops, or other company-related events and functions, whether they take place on or off company premises.
Responsibility
- Ensure employees are not harassed or discriminated against
- Provide a safe, healthy workplace
- Have a harassment and discrimination policy
Liability
The company may be held liable for the actions of employees, particularly those considered part of the ‘directing mind’ of the company. This would include managers, supervisors, directors, senior officials and anyone else who directs the work of other employees.
Responsibility
- Protect employees from discrimination and harassment
- Take prompt action on complaints
- Take action if company policy or Code violated
Liability
People representing the company may be considered part of its ‘directing mind.’ They can be held personally or indirectly liable for the actions of employees, if they knew or should have known about the harassment and did not attempt to stop it.
Responsibility
- Maintain a positive and business-like workplace
- Ensure a discrimination- and harassment-free work environment
Liability
Have a legal responsibility to treat co-workers and others in a manner consistent with the Code and the company’s policies.
Responsibility
- Help keep workplace environment discrimination- and harassment-free
Liability
Cannot contract out of the provisions of the Code.
Scope of Protection
Who is protected under the Human Rights Code and Company Policies?
When it comes to employment, full-time, part-time, temporary, casual, probationary and contract employees, as well as volunteers, summer and co-op students, outside agency employees performing work for the company are covered by the Code and company policies. While the Code does not specifically define “employee”, the Ontario Human Rights Commission and the courts have generally applied a very liberal interpretation in extending the protection of the Code.
Human Rights Reference Tool Overview
Discuss the responsibility and liability of all parties, the scope of protection, prohibited and non-prohibited grounds, and the social areas covered within the grounds.
Provide definitions and examples of all forms of harassment and discrimination.
Provide a downloadable version of the company’s Human Rights and Anti-Harassment Policy.
Provide a number of quick links on the key themes of this Human Rights Reference Tool.
Provide commonly asked questions and answers as it applies to your company’s policy.
This Human Rights Reference Tool can be further customized and enhanced by including your company’s brand/logo, and policy.
Contact HR Proactive Inc. to discuss customization options and pricing.
Prohibited and Non-prohibited Grounds
Grounds Prohibited by the Ontario Human Rights Code
To combat workplace harassment, the provincial government has put in place laws to promote equality of treatment and prevent harassment in the workplace. As an employee, you are covered by provincial human rights legislation.
Grounds Not Prohibited by the Ontario Human Rights Code
When complaints cannot be related to the grounds prohibited by the Code, these may still present workplace issues that need to be addressed by management and resolved before they escalate, and may fall within a form of harassment most commonly referred to as personal or psychological harassment.
Prohibited Grounds Definitions
The Human Rights Code prohibits discrimination and harassment on the grounds listed below. Click on the buttons to learn the definitions of the grounds, review examples, and access case law.
RACE
Not defined in the Human Rights Code. Generally understood to refer to people distinguishable by certain genetic and/or physical characteristics.
Example
A workplace that allows racial name-calling or racial graffiti is violating the Human Rights Code.
ANCESTRY
Our identity based on who our ancestors were, as determined by our biological and other ties to them.
Example
Comments or conduct that demean a person based on their background are discriminatory.
PLACE OF ORIGIN
A place outside Canada where one has previously lived.
Example
Where one comes from cannot legitimately be used to deny a person a job, an apartment, or service, except in very limited circumstances where Canadian citizenship is required by law.
CREED
One’s spiritual and religious beliefs. Employees have a right to be accommodated in the practice of their creed. Employees may seek accommodation for dress code, flexible work hours, religious leaves, etc.
Example
In a workplace requiring shift work, a person who observes a Friday sundown to Saturday sundown Sabbath should not be required to work Friday evenings or Saturdays.
AGE
In employment, persons over 18 and less than 65 are protected under this ground. Persons under 18 or over 65 may file a complaint on the basis of age in other social areas, like housing or services.
Example
An employer may not decide that it will not give a job to a qualified 58-year-old because of concerns that the person is too close to retirement age.
FAMILY STATUS
The status of being in a parent and child relationship. May also include who your parent or child is. The ground does not extend to siblings, cousins, uncles and aunts, etc.
Example
If an employee is denied a promotion she would otherwise deserve because it is assumed that her child care responsibilities would interfere with the job, this would constitute discrimination because of family status.
COLOUR
One’s skin colour. Complaints citing the ground of colour almost always cite the ground of race as well, and often also cite place of origin and ethnic origin.
Example
A workplace where inappropriate nicknames based on a person’s skin colour are allowed is violating the Human Rights Code.
ETHNIC ORIGIN
Refers to a person’s identity as part of a sizable population sharing a common and distinctive racial, national, religious, linguistic, or cultural heritage.
Example
Comments or conduct that demeans a person based on his/her ethnic background are discriminatory.
CITIZENSHIP
The status of the individual within the state. E.g., Canadian Citizen, Refugee, Landed Immigrant, in the country on a work, student or temporary Visa.
Example
If an employer refuses to hire people without “Canadian experience,” it is contravening the Code.
SEX & PREGNANCY
Refers to the gender of a person. The distinction between male and female in general. Also includes pregnancy.
Example
Deciding that women are not suited to certain kinds of employment or should not be hired because they are or may become pregnant is discriminatory.
SEXUAL ORIENTATION
Includes persons who are homosexual, lesbian, bisexual or heterosexual and is considered “an immutable personal characteristic that forms part of an individual’s core identity.”
Example
It is against the Code to refuse to hire a person because they are gay.
GENDER IDENTITY & GENDER EXPRESSION
This ground is intended to protect transsexual or transgendered persons from discrimination.
Example
- A transsexual person answers an ad for an apartment. The superintendent says there are no units available, even though there are.
- An employee tells his supervisor that he cross-dresses. His supervisor says he will no longer qualify for promotions or job training because customers and co-workers will not be comfortable with him.
MARITAL STATUS
The state of being married, single, widowed, divorced or separated, or living with a person in a common law relationship, including with a same sex partner.
Example
An employer in the far north cannot have a policy of providing paid return flights for only married staff with family in the south.
DISABILITY/HANDICAP
Includes any real or perceived physical disability, infirmity, malformation or disfigurement caused by bodily injury, birth defect or illness; includes developmental and learning disabilities, mental disorders, and injuries covered by WSIB.
Example
Examples of disability include: epilepsy, birth defects, diabetes, blindness (including use of a guide dog), deafness, psychiatric illness.
RECORD OF OFFENCES
A conviction for which a pardon has been granted under the Criminal Records Act and not revoked, or any conviction for an offence under provincial law.
Example
The company may not refuse to hire a person who was convicted for a minor drug possession charge twenty years ago, if that person has obtained a pardon.
Social Areas
Examples include restaurants, stores, public pools, arenas, libraries.
- Angeconeb vs. 517152 Ontario Ltd., supra. A practice of accommodating native clients in inferior rooms in hotel amounts to discrimination, whether intentional or not, and whether or not the practice was adopted in all cases.
- Rosetti vs. Montgomery (1988), 9 C.H.R.R. D/4498 (Ont. Bd. of Inquiry). The fact that the owner of a bar has had past problems with members of a particular ethnic minority does not justify the refusal to provide service to members of that ethnic group.
Everyone has a right to rent or buy a house or apartment on equal terms without discrimination.
- Niagara North Condominium Corp. No. 46 v. Chassie (1999), 173 D.L.R. (4th) 524 (Ont. Gen. Div.). A condominium corporation which prohibits pet ownership discriminates against disabled person who require a pet to function independently.
Every person having legal capacity has a right to contract on equal terms without discrimination.
- Janssen v. Ontario (Milk Marketing Board) (1990). 13 CHRR D/397 (Ont. Bd. of Inquiry). A policy which permitted dairy farmers who chose not to ship milk on Sundays to make other arrangements at an additional cost had a differential impact on farmers who observed Sundays as a Sabbath. A reasonable accommodation of these farmers would spread the additional costs across the entire community of dairy farmers.
Includes all aspects of employment including: hiring, dismissal, promotion or training.
- Clarendon Foundation v. O.P.S.E.U., Local 593, [2000] L.V.I. 3104-6 (Ont. Arb. Bd.). An employer may be liable for the acts of third parties, such as consumers and customers. It has a duty to intervene to stop harassment of its employees by third parties.
- Gosselin v. Kenora Ballet School (February 28, 1994), No. 592 (Ont. Bd. of Inquiry). The employer asked the complainant to sign a legal waiver regarding the aerobics classes she taught and their effect on the fetus. The complainant refused and was fired. Both the request and firing were discriminatory.
Distinguishing between essential and non-essential work duties is an important element of the accommodation process. We all understand that every job comes with a variety of tasks that need to be done. However, we also understand that some tasks are less crucial than others.
In seeking to accommodate the needs of a person with disabilities in the workplace, insisting that the person be able to perform every last duty regardless of its importance to the essential nature of the job can result in the person being excluded.
For example, if a person who uses a wheelchair is otherwise able to perform the essential duties of receptionist, but is told they must also deliver incoming mail to the desks of the workers on several floors of the workplace, not all of them easily accessible to a person in a wheelchair, this person may be unfairly excluded from a job they can otherwise perform. An effective accommodation process will recognize that this is a duty that can easily be swapped to another worker, thus allowing the person to perform the essential duties of receptionist.
This social area deals with your right to join and be treated equally in a union, professional association or other vocational association including the terms and conditions of memberships, rates of pay and work assignments.
- Gohm v. Domtar Inc (No. 4) (1990), 12 C.H. R.R. D/161 (Ont. Bd. of Inquiry). Where a union refused to allow a collective agreement to be altered to accommodate the religious beliefs of an employee, its action (along with those of the employer) contributed to the discrimination suffered by the complainant who was dismissed for failure to work on religious holidays. The union failed to attempt to reasonably accommodate the religious beliefs of the complainant.
Relationship between Grounds & Social Areas
| Prohibited Ground | + | Social Area | → | Complaint |
EXAMPLE 1
A female applicant who required accommodation during pre-employment testing for hearing loss believes she has been discriminated against in employment (social area) based on disability (prohibited ground). Since her situation involves both the prohibited ground AND the social area criteria that must be met, she is able to proceed with filing a complaint.
| Prohibited Ground | + | Social Area | → | Complaint |
EXAMPLE 2
A supervisor requests that an employee cleans up their messy desk. The social area would be employment. However, the employee would not be able to identify a ground of discrimination.
| Prohibited Ground | + | Social Area | → | Complaint |
EXAMPLE 3
Two neighbours have a dispute over where to put a fence between their properties. During an argument, one uses a racial slur while talking with the other. Although there is an easily identifiable ground of discrimination (race), there is no social area that the dispute falls into. However, if the person who uttered the slur was the neighbor’s landlord, a human rights complaint could be made because of race in accommodation.
| Prohibited Ground | + | Social Area | → | Complaint |
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