Human Rights (Rights and Responsibilities)

• Author: Netta Romano
• Pages: 281-326

281

Human Rights in

theWorkplace

RIGHTS AND RESPONSIBILITIES

9

Learning Outcomes

After completing this chapter, you will be able to:

• Define the terms “discrimination” and “employment”

under Ontario’s Human Rights Code and identify the

social areas in which discriminati on is prohibited.

• Identify the prohibited grounds of discrimination in

employment under the Human Rights Code.

• Identify the specific exemptions under which discrimi-

nation is allowed.

• Understand the human rights issues raised in relation to

hiring, including pre-employment testing, job advertise-

ments, applications, interviews, and conditional offers

of employment.

• Outline an employer’s duty to accommodate and the

expectations of all parties to achieve an appropriate

accommodation.

• Identify behaviour that may constitute workplace

harassment, sexual harassment, and sexual solicitation.

Introduction ........................ 282

What Constitutes Discrimination? ...... 283

Prohibited Grounds of Discrimination

in Employment .................. 288

Exemptions: Where Discrimination

Is Allowed ...................... 297

Recruitment, Selection, and Hiring ...... 300

The Duty to Accommodate ............ 303

Harassment ......................... 319

Further Reading ..................... 324

Related Websites .................... 324

Key Terms .......................... 324

Review Questions ................... 325

Discussion Questions ................. 325

© 2022 Emond Montgomery Publications. All Rights Reserved.

282 EMPLOYMENT LAW FOR PARALEGALS

Introduction

The Ontario Human Rights Code 1 opens with a preamble that sets out the spirit and

intent of the legislation. Inspired by the 1948 Universal Declaration of Human Rights,

2

the Code’s preamble recognizes the “inherent dignity and the equal and inalienable

rights of all members of the human family” and provides for equal rights and opportun-

ities without discrimination to create a climate of understanding and mutual respect:

Whereas recognition of the inherent dignity and the equal and inalienable rights of

all members of the human family is the foundation of freedom, justice and peace

in the world and is in accord with the Universal Declaration of Human Rights as

proclaimed by the United Nations;

And Whereas it is public policy in Ontario to recognize the dignity and worth of every

person and to provide for equal rights and opportunities without discrimination that

is contrary to law, and having as its aim the creation of a climate of understanding

and mutual respect for the dignity and worth of each person so that each person

feels a part of the community and able to contribute fully tothedevelopment and

well-being of the community and the Province;

And Whereas these principles have been conrmed in Ontario by a number of

enactments of the Legislature and it is desirable to revise and extend the protection

of human rights in Ontario.

3

As a statement of principles, the preamble does not contain specic legislative

requirements. However, it affects the interpretation of the Code. Where a provision is

silent or ambiguous about an issue, courts and tribunals often use the preamble as an

internal aid in deciding to interpret the Code in its broadest sense.

Another factor that has encouraged a broad and liberal interpretation of rights in the

Code is its role as remedial legislation. This means that it exists to right a societal

wrong and give the affected person or group a remedy, not to allocate blame or punish

an offender.

Finally, the Code is quasi-constitutional legislation. This means that where there isa

conict between the Code and another Ontario law, such as the Employment Standards

Act, 2000,

4 the Code prevails unless the other law specically states that it applies despite

the Code (see s 47(2)).

Unlike the Canadian Charter of Rights and Freedoms, which directly applies only to

government actions, human rights statutes apply to the actions of individuals and cor-

porations in the course of their interactions within certain social situations. The scope of

human rights law has been steadily expanding. Ontario’s rst comprehensive human

rights statute, passed in 1962, prohibited discrimination on just six closely related

grounds: race, creed, colour, nationality, ancestry, and place of origin. Ontario’s current

Code now prohibits discrimination in employment on 16 grounds.

1 RSO 1990, c H.19 [the Code].

2 GA Res 217A (III), UNGAOR, 3rd Ses s, Supp No 13, UN Doc A/810 (1948).

3 Supra note 1, Preamble.

4 SO 2000, c 41 [ESA].

remedial legislation

a law intended to right a

societal wrong and pr ovide

a remedy, rather than to

punish an offender

quasi-constitutional

in reference to the Code,

legislation that is given

subordinate authority over

other provincial statutes

© 2022 Emond Montgomery Publications. All Rights Reserved.

CHAPTER 9 HUMAN RIGHTS I N THEWORKPLACE 283

What Constitutes Discrimination?

The term “discrimination” is not dened in the Code. Initially the courts interpreted

it to refer only to intentional acts of exclusion—for example, the placement of an

advertisement specifying that individuals of a certain ethnic background need not

apply. This behaviour is known as direct discrimination and is easy to identify. Many

acts of discrimination, however, are hidden or even unintentional. For example, the

weight and height restrictions formerly attached to some jobs, such as reghter and

police ofcer, often had an adverse impact on women and members of certain ethnic

groups who, on average, were unable to meet those “job requirements.” This indirect

discrimination is sometimes referred to as adverse impact discrimination or con-

structive discrimination.

In 1985, the Ontario government amended the Code to expressly prohibit construct-

ive discrimination. Section 11 provides that a rule that results in discrimination infringes

the Code unless it is a bona fide occupational qualification (BFOQ) or bona fide

occupational requirement (BFOR) or it falls within one of the limited exemptions dis-

cussed below (see “Exemptions: Where Discrimination Is Allowed”). Section 11 further

notes that a rule or qualication will not be considered a BFOQ unless it is shown that

the needs of that person or group cannot be accommodated without imposing undue

hardship on the employer, discussed later in this chapter (see “What Constitutes Undue

Hardship?”). Thus, the duty to accommodate is an integral part of an employer’s obliga-

tions under the Code. Although the duty can arise on several grounds, it is most likely to

arise in the case of an employee who has a disability. The duty to accommodate for dis-

ability is specically covered in section 17 of the Code.

Systemic Discrimination: What Is It?

Systemic, or institutional, discrimination is one of the more complex and subtle

forms of indirect discrimination. It refers to employer policies or practices that

appear to be neutral but that have discriminatory effects. For example, a company

may have a culture th at encourages informal mentoring through sports-related activities

that take place after working hours. Employees who are disabled or whose family

responsibilities make it more difficult for them to participate after hours may be less

successful at building internal networks as a consequence.

FYI

In 1999, the Supreme Court of Canada further broadened the scope of prohibited

discrimination in the watershed decision of British Columbia (Public Service Employee

Relations Commission) v BCGSEU

5 (the Meiorin case). This case established a three-part

test for determining when a discriminatory rule or standard is justied. This test is the

same whether the discrimination is direct or constructive.

5 [1999] 3 SCR 3, 1999 CanLII 652 [Meiorin].

discrimination

treating a person or group

differently or negatively,

based on a prohibited

ground of discrimination

under the Code

direct discrimination

discrimination that on its

face denies a person eq ual

participation based on the

person identifying with

a prohibited ground

indirect discrimination,

adverse impact

discrimination,

or constructive

discrimination

practices, behaviou rs, or

policies that unintentionally

have an adverse effe ct on

members of certain groups

bona fide occupational

qualification or bona fide

occupational requirement

a reasonably necessar y

qualification or requirement

imposed in a sincere

belief that it is related

to job performance

undue hardship

defined in sectio n 11(2)

of the Code to refer to

considerations of cost,

outside sources of fun ding,

and health and safety o nly

systemic

employer policies or prac tices

that appear neutral but t hat

have discriminatory ef fects

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