Ontario Human Rights Law for Employees - Employment Lawyer Toronto

Human Rights Law Protections for Employees

The Ontario Human Rights Code requires all employers to respect the rights of their workers and ensure their workplace is free of any form of discrimination. Most importantly, employers are required to accommodate their workers to the point of “undue hardship”. This is called an employer’s Duty to Accommodate, and it basically means that all employers have an obligation to adjust rules, policies or practices to enable an employee to participate fully (see examples below).

What is the Human Rights Code?

It is a provincial law that says everyone in Ontario has the right to be treated fairly and equally in many areas of daily life, including housing, services, entering into contracts and employment.

When it comes to employment, employers cannot treat a person unequally based on specific human characteristics, such as their age, disability, citizenship, race, place of origin, ethnic origin, colour, ancestry, religion, sex/pregnancy, family status, marital status, sexual orientation, gender identity, gender expression, and record of offences. These are called “prohibited grounds” of discrimination.

The Human Rights Code protects everyone in the workplace, including full-time and part-time employees, temporary, casual and contract staff, interns and apprentices, as well as anyone who visits the workplace, including customers and suppliers.

Provision vs Federal Human Rights Matters

The Human Rights Code only applies to employees working for a company that is governed by provincial employment law. For employees that work for employers governed by federal employment law, such as airlines, banks or telecommunications companies, the Canadian Human Rights Act applies.

Human rights matter that generally fall under federal jurisdiction include, among others:

chartered banks
television and radio stations (e.g., CBC, CTV)
telephone companies (Bell/Rogers/Telus)
transportation organizations that cross provincial/federal borders such as airlines, bus companies and railways

These services all cross borders/boundaries and are federally regulated.

If someone experiences discrimination in a federally-regulated context, they should direct themselves to the Canadian Human Rights Commission (CHRC) as they oversee matters under federal legislation. The CHRC follows the Canada Human Rights Act and not the Ontario Human Rights Code.

What does “Discrimination” Mean?

Discrimination means any form of unequal treatment against a person based on a prohibited ground under the Human Rights Code. Since most people do not openly discriminate, the focus is generally on the impact of the person’s behaviour, not their intention.

Types of Discrimination

According to the Ontario Human Rights Commission, there are generally 3 main forms of discrimination:

Direct Discrimination

This occurs when a person’s words or actions are clearly discriminatory. For example, an employer who refuses to hire or promote a woman because she is pregnant, has a disability, or because she is of older age.

Indirect Discrimination

This occurs when a person’s discriminatory words or actions are carried out through another person. In employment, this usually includes situations where a job requirement (or rule) appears to be neutral and the same for everybody, but actually has the effect of disadvantaging people with a personal characteristic protected by human rights law. For example, a company’s board of directors has a policy requiring employees not to hire employees of older age, or a company with dress code/uniform that requires male employees to be clean shaven.

Systemic Discrimination

The reality is that most discrimination occurs in a subtle (not-so-obvious) manner. This is why proving discrimination often requires closely examining the specific circumstances of each case, including a person’s tendencies and patterns of behaviour. Similarly, when it comes employers, we generally examine the entire “system” that exists at the company – that is, past/current behaviour, decisions, policies or practices to determine – how it operates and how it impacts specific people (e.g., women, persons of colour, people with disabilities, etc.).

System discrimination has been defined by the courts as:

“practices or attitudes that have, whether by design or impact, the effect of limiting an individual’s or a group’s right to the opportunities generally available because of attributed rather than actual characteristics.” [Canadian National Railway Co. v. Canada (Canadian Human Rights Commission), [1987] 1 S.C.R. 1114 at p. 1138].

A recent example is the ongoing global protest against systemic racism and racialized discrimination, which often occurs due to unconscious bias against a certain group of people simply because on their race, colour, religion or ethnicity (e.g., Arab, black, Asian, Native, Hispanic).

How to Prove Human Rights Discrimination?

In order to prove discrimination under the Human Rights Code, an employee must show that:

they have a protected personal human characteristic (e.g., race, ethnicity or disability);
they experienced negative/unequal treatment in some aspect of their employment (e.g., pay or promotion); and
part of the reason for the negative/unequal treatment was their human characteristic (e.g., race, ethnicity or disability).

Discrimination can take many forms in the employment context, such as workplace bullying and harassment, unfair hiring or termination practices and unfair workplace policies, all of which could be based on a person age, disability, family status, marital status, sexual orientation, citizenship, creed or place of origin. Whatever your particular case may involve, you can discuss your options with our experienced human rights lawyer. To book a consultation, simply complete the form on this page or call 647-822-5492 to arrange a meeting.

Employers and the “Duty to Accommodate”

In Ontario, employers have a legal “duty to accommodate” the needs of their employees that relate to personal characteristics protected by the Human Rights Code. Quite often, this means that employers have to adjust rules, policies or practices to allow employees to do their job and participate in the workplace.

To satisfy their duty to accommodate, the employer must take all measures that can be taken without causing undue hardship to the business.

The employer’s duty to accommodate is triggered whenever an employee is adversely affected in the workplace based on a personal characteristic protected by human rights law, such as a person’s disability, age, religion, marital status, immigration status, ethnic or racial identity or family obligations.

In the employment context, the duty to accommodate typically involves an employee who suffers a disability (e.g., injury, illness or addiction) that prevents them from continuing to do their job in the usual manner. Since the employee is no longer able to perform in the same way (e.g., a disability impedes their ability to lift or carry heavy items), the employer has an obligation to work together with the employee to establish an accommodation plan that allows the employee to perform their job, while also addressing their individual needs. Most importantly, it also means the employer cannot fire them without first providing reasonable opportunities for rehabilitation or alternative work.

Examples of Duty to Accommodate

flexible work schedules (or necessary ‘break times’)
leaves of absence
allowing employees to work from home
removing a rule or policy that unfairly disadvantages or singles out only certain employees
allowing an employee to take time off work (e.g., to attend medical appointments)
modifying the work environment (e.g., ergonomic office equipment)
putting in automatic entry doors and making washrooms accessible in the workplace
changing job duties, retraining or assigning a person to another job
building a wheelchair access ramp

It is important to note that the duty to accommodate is not unlimited, and employers are not required to accommodate a person’s needs beyond the point at which the accommodation would cause “undue hardship” to business operations. However, this limitation on an employer’s duty to accommodate is determined a case-by-case basis, but allows an employer in some instances to prove that accommodation is not possible (e.g., it would create health or safety risks to other employees in the workplace).

How Could a Human Rights Lawyer Help?

For employees, Bune Law provides comprehensive human rights legal advice and representation to employees all across Ontario, to ensure their basic rights to equal treatment in employment are respected and protected.

For employers, Bune Law helps ensure employers fully comply with their legal obligations under the Human Rights Code, particularly by ensuring they understand the law and avoid actions that could potentially be discriminatory. Whether employers are looking for help to take proactive measures to avoid employee discrimination claims, or if they were accused of Code violations, Bune Law can help.

If you would like to discuss your own situation and obtain legal advice, please contact (647) 822-5492, or submit the contact form on the right.

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