This section describes specific parts of each of the grounds of the Code, and highlights points that are distinctive or particular to each of the grounds. The Commission has developed policies that outline in more detail how the Code applies to grounds such as family status, age (older persons), sexual orientation, race, disability, gender identify, sex (harassment, and also pregnancy and breastfeeding) and language (may be connected to ethnic origin, place of origin, race and ancestry). For a list of Commission policies, refer to Appendix A. Show
a) When grounds intersectA person’s experience of discrimination is often linked to the compounding effects of multiple grounds. Based on their unique combination of identities, people may be exposed to particular forms of discrimination and may experience significant personal pain and social harm that come from such acts of discrimination. For example, a Jewish lesbian with a child and same-sex spouse can be seen as a “mother of a child” or a “Jewish woman” and would be protected under the grounds of marital status, family status, creed and sexual orientation. As lesbians, this woman and her spouse may be exposed to forms of discrimination that other Jewish women with children are not. Similarly, a young Black man can be seen as a “Black person,” or as a “young person,” or as a “man” and is protected under the grounds of race, age and gender. He may be exposed to discrimination based on any of the grounds of race and/or colour, age, and gender on their own. However, he may also be exposed to discrimination on intersecting grounds on the basis of being identified as a “young Black man” based on the various assumptions and/or stereotypes that are uniquely associated with this socially significant intersection.
A person identified by multiple grounds may experience disadvantage that is compounded by the presence of each of the grounds. For example, research confirms that older persons and persons with disabilities face higher unemployment rates. As well, members of racialized groups are more likely to be underemployed. Therefore, an older African Canadian person who is developing a disability will likely face compounded disadvantage when looking for work. These are examples of how an intersectional approach based on the overlap of multiple grounds of discrimination is applied.
b) Protecting persons “associated” with others protected by the CodeIn some cases, the Code can protect people who are not personally identified by one of the grounds. People who are subject to discrimination because of their association with a person protected under the Code can file a complaint based on section 12. The protection in this section applies even if the person could not otherwise claim protection based on one of the grounds, or does not share the same Code grounds as the person they are associated with.
Racial discrimination because of association often arises in terms of inter-racial relationships. In the workplace, it may take the form of harassment or causing a poisoned environment for a woman dating a racialized man. Employees who are discriminated against because they provide care to persons with disabilities commonly file complaints citing “association with a person with a disability” as a ground. The ground of family status may also be cited if it applies. Taking reprisal action against someone who has objected to discriminatory comments aimed at another group may be found to be discrimination because of association.
See also Section III-2d) – “Discrimination because of association” under “What is discrimination?” c) Perceived groundsA person is protected under the Code if they are treated differently in a workplace because of negative characteristics that other people associate with one of the grounds. The question is whether the person is perceived to be a member of a protected group, even if this view is not accurate. This analysis looks at the perceptions, myths and stereotypes underneath a person’s experience and considers the subjective impact of the treatment, rather than the intent behind the treatment.
d) AgeThe Code prohibits discrimination because of age in all social areas including employment. “Age” is defined in section 10(1) as “an age that is 18 years or more.” Discrimination based on age can happen at any time in a person's life. Younger employees may experience discrimination because of negative attitudes and stereotypes about youth and experience. On the other hand, employees may be viewed as “older” and treated poorly in a particular context compared to others who are younger. When the allegation relates to negative attitudes and stereotypes about aging, it may be necessary to think about a person’s age in the context of a particular situation, workplace or group of employees.
In many cases, age discrimination is caused by or linked to ageism. Ageism is a socially constructed way of thinking about persons based on negative stereotypes as well as a tendency to structure society as though everyone is the same age – all old or all young. For example, older persons may experience age discrimination in employment where they may be perceived to have less “career potential” than younger applicants or employees. Younger workers may be belittled and treated with less dignity because they are viewed as expendable resources. i) Discrimination against older employees:Most claims of age discrimination in employment relate to older employees. As a general principle, older workers should be treated as individuals. They should be assessed on their own merits instead of on presumed group characteristics and offered the same opportunities as everyone else in hiring, training and promotion. They should normally work under the same performance management practices as every other worker. Where, however, an older person has in fact slowed down due to age-related health or disability concerns, an employer may have to provide some form of accommodation to him or her, such as reduced work targets. Age, including assumptions based on stereotypes about age, should not be a factor in decisions about layoff or termination. The decision should be based on the person’s actual merits, capacities and circumstances. The following are a few of the many types of situations that might constitute age discrimination against older persons in employment:
ii) Employees under age 18:The Code previously provided for a maximum age limit of 65 in employment along with the existing minimum age requirement of 18 years for all social areas. Such age limits in human rights legislation across Canada have been challenged as offending section 15 of the Canadian Charter of Rights and Freedoms (the Charter), which guarantees the right to equal protection and benefit of the law without discrimination based on age and other grounds. The Code was amended in December 2006 to extend protections for older persons by removing the maximum age limit in employment. However, the Code continues to define age by referring to a minimum age of 18. This definition does not mean that employees have to turn 18 before they are protected under the Code. Employees under age 18 are protected under any of the other grounds in the Code, such as sex, race, disability and so on.
The courts have not yet decided whether employees under age 18 are entitled to remedies based on age discrimination alone, when no other grounds are present. However, there are strong indications that when this issue is litigated, the minimum age cut-off may be found to contravene the Charter and therefore be of no force or effect. For example, in Ontario, there has been one court decision and one interim decision of the Human Rights Tribunal of Ontario where minimum age restrictions for access to services were not applied because they were inconsistent with the Charter.[10] Courts and tribunals would probably do the same for the lower age limit in employment.
As a best practice, employers should make sure to treat employees under age 18 with respect in the workplace, and deal with any age-related concerns as diligently as they would for employees over 18. e) DisabilityAlmost one quarter of all human rights claims filed in employment cite disability as a ground. Because disability-related concerns arise so often, a best practice is for employers to plan for compliance with the Code through measures such as inclusive design, accessibility reviews and developing accommodation policies, as are discussed in Section IV-1a) and IV-1d) – “More about reviewing, preventing and removing barriers related to disability.” These provide a framework for the employer to prevent and address disability-related issues and claims in a timely way. The definition of disability in the Code is very broad. It includes any degree of physical, developmental, mental or learning disability. While the Code sets out various types of conditions, the list does not refer to every type of disability that is covered. A person who is perceived to have a disability is also protected by the Code, even if that person does not have a disability. Section 10(3) of the Code specifically protects persons who have had a disability in the past, as well as people who are believed to have, or have had a disability. The Code ground of disability also specifically protects persons with injuries or disabilities who claim or receive benefits under Ontario’s Workplace Safety and Insurance Act (WSIA). There is no need to prove that the condition itself is a disability, but only that such benefits have been claimed or received or that there is an intention to claim such benefits. The Code is violated if an employer tries to discourage an employee from filing a claim or fires an employee because it believes the employee will file a claim for benefits. This protection exists even if no claim for benefits has actually been made.[11]
It is important to recognize that discrimination because of disability may be based as much on perceptions, myths and stereotypes, as on actual functional limitations.[12] When considering whether a person has been discriminated against because of disability, it is more important to consider how the person was treated than to prove that the person has physical limitations or an ailment. A disability may be the result of a physical limitation, an ailment, a perceived limitation or a combination of all these factors.
The nature or degree of certain disabilities might render them "non-evident" to others. Because these disabilities are not "seen," many of them are not well understood in society. This can lead to stereotypes, stigma and prejudice. Examples might include:
Protection for persons with disabilities under section 10 of the Code clearly includes mental disabilities such as mental illness. The Canadian Psychiatric Association estimates that one in five Canadians will experience mental illness in their lifetime. They describe mental illness as "significant clinical patterns of behaviour or emotions associated with some level of distress, suffering (pain, death), or impairment in one or more areas of functioning (school, work, social and family interactions). At the root of this impairment are symptoms of biological, psychological or behavioural dysfunction, or a combination of these."[13] Persons with mental disabilities face unique challenges – discriminatory barriers affect their ability to compete equally in a job market and result in them being excluded from the workplace. These effects may be magnified for persons identified by more than one Code ground. For example, due to discrimination, an Aboriginal woman with a mental disability may face additional employment obstacles compared to a White man with a mental disability. Once employed, people with mental disabilities may not be able to fully take part in the workplace due to a lack of accommodation or stereotypes and prejudice. Stigma can make a person’s workplace stressful and may trigger or worsen an employee’s mental illness. It may also mean that someone who is having problems and needs help may not seek it, for fear of being labelled.
For more information about disability accommodation, see Section IV-9 – “More about disability-related accommodation” and the Commission’s Policy and Guidelines on Disability and the Duty to Accommodate. For information about mental illnesses in the workplace, see Section IV-9m). f) Family status“Family status” is defined in section 10(1) of the Code as being in a parent and child relationship. Men and women are equally protected under this ground. The ground of family status protects non-biological parent-and-child relationships, such as families formed through adoption, step-parent relationships, foster families, non-biological gay and lesbian parents and all persons who are in a “parent-and-child-type” relationship.
The ground of family status also includes care relationships between adult children and people who stand in parental relationship to them. The protection extends to persons providing eldercare for aging parents, or others in a “parent-type” relationship with the caregiver. For example, a person providing eldercare to a grandparent who played a significant role in his or her upbringing may be protected under the ground of family status. The Code’s protection of family status may overlap with grounds such as marital status, sex (including pregnancy and gender identity) and sexual orientation. It covers a range of family forms, including lone-parent and blended families, and families where parents are in same-sex or common-law relationships. The Supreme Court has also stated that family status discrimination occurs when a person is negatively treated because of a relationship with a particular family member. This means that if an employee is fired from or denied a job because the employer dislikes the employee’s parent or child, the employee has been discriminated against on the basis of family status.[14] Whenever an issue relating to family status is raised, it is important to take into account the intersecting impact of the person’s sex, marital status, sexual orientation, race and age, as well as whether the person or his or her family member has a disability. For more information about this concept, please refer to Section III-3a) – “When grounds intersect.” The Code prohibits treating an employee differently, either directly or unintentionally, because of family status. Employers have a duty to accommodate employees, short of undue hardship, because of their child-care and/or eldercare responsibilities. Employers share social responsibility for providing a workplace that is reasonably flexible to meet the needs of employees with family responsibilities. The Commission recommends that employers recognize and accommodate a broader range of family relationships than those described by the grounds of marital and family status.
The following kinds of stereotypes and biases may give rise to discrimination based on family status:
There is a specific exception to the right to employment without discrimination because of family status. Subsection 24(1)(d) of the Code provides that an employer can withhold or grant employment or advancement in employment to the employer’s or an employee’s spouse, child or parent. This rule allows an employer to support or oppose a narrow range of nepotism in its hiring practices. For more information about the Code and family status, refer to the Commission’s Policy and Guidelines on Discrimination Because of Family Status. g) Marital statusMarital status is defined in section 10(1) of the Code as the status of being married, single, widowed, divorced or separated and includes the status of living with a person in a conjugal relationship outside of marriage (that is, in a “common-law relationship”). The courts have clearly stated that equal protections apply to common-law, same-sex and opposite-sex relationships. This is to make sure that marital status is an irrelevant factor to consider in relation to any of the social areas in the Code. Take care to make sure that policies and actions are not based on, and do not perpetuate, the stereotype that a marriage between a man and woman is of greater value than other types of marital status.
Discrimination based on marital status may also be more subtle than distinctions between the different categories of status, such as married or single.
Marital status includes both the status of the relationship, as discussed above, and the particular identity of the person’s partner or spouse.[15] The Supreme Court of Canada has spoken about focusing on the harm suffered by the individual regardless of whether that individual fits neatly into an identifiable category of persons similarly affected.
There is a specific exception to the right to employment without discrimination because of marital status in subsection 24(1)(d) of the Code. An employer can withhold or grant employment or advancement in employment to the employer’s or an employee’s spouse. This rule allows an employer to support or oppose a narrow range of nepotism in its hiring practices. h) Race and race-related groundsi) Race:Race is a prohibited ground that is not specifically defined. Biological notions of race have been discredited, and there is no legitimate scientific basis for racial classification. Despite this, notions of race continue to exist in society and create differences among groups. This marginalizes some people in society. This social construction of race is termed “racialization” and it remains a potent force in society. Individuals may have prejudices related to people or characteristics that are racialized. In addition to physical characteristics such as colour, the following characteristics are commonly racialized:
The Code prohibits discrimination on several grounds related to race. These include mainly the grounds of colour, ethnic origin, ancestry, place of origin, citizenship and creed (religion). Depending on the circumstances, discrimination based on race may cite race alone or may include one or more related grounds. Each of these grounds is also discussed separately below. The ground of race can encompass the meaning of all of the related grounds, and any other characteristic that is racialized and used to discriminate. In practice, all grounds that may have been factors in a person’s experience should be cited if a human rights claim is made. It is often hard to tell what the basis is for racial discrimination. A First Nations woman may be discriminated against based on the colour of her skin, stereotypes associated with her ethnic origin or her ancestry, or distaste for the practices of her creed, or based on some combination of these factors. All are possibilities and it is often hard to distinguish these in specific instances. In many cases, the discrimination arises only because of the particular combination of grounds. For example, stereotypical and racist views may be held about people’s sexuality based on their ethno-racial identity.
Racist ideology asserts either explicitly or implicitly that one racialized group is inherently superior to others. Racist ideology can be openly displayed in racial slurs, jokes or hate crimes, or it can be more deeply rooted in attitudes, values and stereotypical beliefs. In some cases, these beliefs are unconsciously maintained by individuals and have become deeply embedded in systems and institutions that have evolved over time. Racial stereotypes are typically negative; for example, that racialized employees are lazy, not intelligent, unreliable, dirty, uncivilized, promiscuous, submissive, more likely to abuse drugs or alcohol, of questionable moral character, more likely to engage in criminal activity or do not fit into the workplace. However, in some cases, positive stereotypes may be at play (for example, generalizations that members of a particular group are dutiful employees). There are a number of myths and misconceptions about racism and racial discrimination that make it harder for organizations to respond properly to racial inequality. When putting in place measures to prevent or address racial discrimination in the workplace, employers should take care not to rely on the myths that:
For more information about the Code and racial discrimination, refer to the Commission’s Policy and Guidelines on Racism and Racial Discrimination. ii) Language:Language itself is not a ground. However, it is a characteristic that may be racialized or connected to one of the race-related Code grounds such as ancestry, ethnic origin, place of origin, or in some situations race. There is usually also a link between the accent we speak with and these grounds.
Employers cannot discriminate against employees based on language or accent, unless these requirements can be established to be genuine and made in good faith. If proficiency in a particular language is a requirement for a position, the employer would need to be able to show that the requirement is linked to the essential duties of the position, is imposed in good faith and takes into account the duty to accommodate to the point of undue hardship.
For more information about the Code and language, refer to the Commission’s Policy on Discrimination and Language and the Policy and Guidelines on Racism and Racial Discrimination. iii) Colour:“Colour” is listed as a ground in the Code but is an undefined term. A person’s skin colour can be seen as a physical feature that is commonly racialized. For the purposes of analysis, colour is a ground that may be encompassed by the concept of race and the principles described above. iv) Ancestry and ethnic origin:The Code provides protection from discrimination in employment because of “ancestry” and “ethnic origin.” These terms are not defined in the Code. Complainants usually identify themselves as having a particular ancestry or ethnic origin in a complaint. The terms “ethnic origin” and “ancestry” are sometimes used interchangeably. However, ancestry is closely related to “whom” you are descended from. An ancestor is someone a person is descended from, and is usually more distant than a grandparent. One’s ancestry may originate from more than one cultural group. Statistics Canada states that “ethnic origin” refers to the cultural origins of a person’s ancestors.[16] Ethnic origin encompasses a wider range of characteristics than ancestry and also includes ancestry. Webster’s Dictionary[17] defines “ethnic” as “of or relating to large groups of people classed according to common racial, national, tribal, religious, linguistic or cultural origin or background.” Ancestry and ethnic origin should not be confused with citizenship, nationality or language spoken. In the Code, the ground of ethnic origin overlaps with a more commonly used term, “ethnicity,” which refers to a shared cultural heritage or nationality. Ethnic groups might be distinguished on the basis of cultural traits such as language or shared customs around family, food, dance and music. People who share an ethnic origin, ethnicity or ancestry may or may not share the same racial identity.[18]
v) Place of origin:People should not be discriminated against or harassed because they are from outside Canada. The Code may even cover people from a particular place within Canada. A person’s place of origin is often related to other grounds in the Code, such as ethnic origin or race. A job advertisement or hiring process may violate the Code if it limits the opportunity to people with “Canadian experience.” Such a requirement can have an adverse impact on recent immigrants to Canada who may lack Canadian experience, even though they may be rich in non-Canadian experience and qualified to do the job. i) CitizenshipIndividuals should not be treated differently or harassed in employment because of their citizenship, whether Canadian or otherwise. It is illegal for employers to make distinctions between Canadian citizens, citizens from other countries, persons with dual citizenship, landed immigrants or permanent residents, refugees and non-permanent residents. Employers should only be concerned with whether a person has legal status to work in Canada, rather than whether the person is a Canadian citizen, except in the narrow exceptions provided by section 16 of the Code, discussed below. People can either be Canadian citizens “by birth” or “by naturalization.” “By birth” means that a person was either born in Canada or born outside Canada if, at the time of his or her birth, one or both parents were Canadian citizens and had retained Canadian citizenship. “Naturalization” means that a person was born in another country and immigrated to Canada, has become a Canadian citizen, and has been issued a Canadian citizenship certificate. Human rights law does not distinguish between the two categories. “Permanent residents” or people with “landed immigrant” status have been granted the right to live in Canada permanently by immigration authorities, but have not yet got Canadian citizenship. Some are recent arrivals, while others have resided in Canada for many years. “Non-permanent residents” are people from another country who live in Canada and have work, student or Minister's permits, or who are claiming refugee status in Canada. Human rights law makes no distinction between permanent residents, non-permanent residents and Canadian citizens except in specific circumstances, noted below.
Section 16 of the Code provides for exceptions to the general rule of non-discrimination in employment because of citizenship. An employer is allowed to discriminate based on citizenship in the following three specific situations:
Canadian organizations operating in Ontario are bound by the Code and should not restrict access to employment based on citizenship. Human rights complaints have been filed in situations where citizenship has been used to deny or restrict access to employment in the defence contracting sector, where there is an opportunity to obtain a waiver or security clearance for all workers on a project.
j) CreedEmployees are entitled to the protections of the Code under the ground of creed, both as individuals and as members of a group. Religion or “creed” is not a defined term in the Code. The Commission interprets creed to mean “religious creed" or "religion." It includes faith, beliefs, observances or worship. A belief in a God or gods, or a single supreme being or deity is not a requisite. For example, the Human Rights Tribunal of Ontario has held that practitioners of Falun Gong are protected under the ground of creed.[19] Religion may be broadly interpreted to include non-deistic bodies of faith, such as the spiritual faiths/practices of Aboriginal cultures, as well as newer religions (assessed on a case by case basis). The key test for the existence of a creed-based right is if the beliefs and practices are sincerely held and/or observed. The Code protects personal religious beliefs, practices or observances, even if they are not considered by others, even a majority of people of the same religion, to be essential elements of the creed. For example, mainstream Jewish organizations may indicate that it is not a basic tenet of Judaism that one must build a small hut or “succah” on one’s property during the holiday of Sukkot. However, if one individual sincerely believes that this is a religious requirement, this person is protected under the ground of creed.[20] Creed does not include secular, moral or ethical beliefs or political convictions.[21] It does not extend to religions that incite hatred or violence against other individuals or groups, or to practices and observances that claim to have a religious basis but which contravene international human rights standards or criminal law. Atheists, who deny the existence of God, and agnostics, who believe that nothing is known or likely to be known about the existence of God, may have the Code’s protection if an employer seeks to impose religious views or create a religious environment in the workplace that is incompatible with agnostic or atheist beliefs. The right to equal treatment on the ground of creed under the Code has two important principles:
Everyone in the workplace has the right to have his or her religious beliefs and practices respected and accommodated. Employees must start this process by asking for accommodation. Employers must meet an employee’s religious needs unless it would cause undue hardship. Undue hardship takes into consideration cost, outside sources of funding and health and safety. For more discussion on accommodation and creed, refer to section IV-8f ii: “Creed – accommodating employees’ religious needs”. There are exceptions to the general right of non-discrimination in employment because of creed:
Situations may arise where protecting rights related to creed may clash with protecting other rights such as, for example, the right to freedom from discrimination on the basis of sex or sexual orientation. The Supreme Court of Canada has stated that the right to freedom of religion is not unlimited. It is subject to such limitations as are necessary to protect public safety, order, health, morals or the fundamental rights and freedoms of others.[22] Where such conflicts arise, the rights must be balanced: neither freedom of religion nor guarantees based on sexual orientation are absolute. In striking such a balance, the Supreme Court of Canada has noted that although the freedom of belief may be broad, the freedom to act upon those beliefs is considerably narrower. It is one thing for a person to hold negative beliefs about sexual orientation based on his or her creed; it is another thing for that person to act in a discriminatory way towards others because of those beliefs. k) Record of offencesA person cannot be discriminated against in employment because of a “record of offences.” Record of offences is narrowly defined in subsection 10(1) of the Code to mean a conviction for:
Therefore, employment decisions cannot be based on whether a person has been convicted and pardoned for an offence under a federal law, such as the Criminal Code, or convicted under a provincial law, such as the Highway Traffic Act. This provision applies to convictions only, and not to situations where charges only have been laid. Before refusing employment to a person or taking a conviction into account, the employer should take steps to determine if a pardon has been granted or if it is a provincial offence. If so, the prohibition in the Code applies. Subsection 24(1)(b) of the Code states that an employer can refuse to hire someone based on a record of offences if they can show that this is a reasonable and bona fide qualification. As is discussed further in Section IV-2 – “Setting job requirements,” to be a reasonable and bona fide qualification, the requirement must be rationally connected to, and necessary for, job performance. To get this exception, the employer must show that the circumstances of the individual cannot be accommodated without creating undue hardship, considering costs, funding and health and/or safety risks. Before taking a record of offences into account in hiring decisions, the employer should conduct an individual assessment of the information before it and the requirements of the position. An employer may wish to consider the following types of questions:
Each job situation and employee or potential employee must be assessed individually. An employer would likely be able to prove that not having a record of a pardoned offence or provincial offence is a bona fide requirement in the following cases:
On the other hand, it would be more difficult for the employer to make the same argument in other cases.
l) SexThe ground of “sex” is not specifically defined in the Code, although it is generally considered to be related to a person’s biological sex, male or female. Men and women receive equal protection under this ground. The ground of “sex” also includes a broader notion of “gender,” which can be described as the social characteristics attributed to each sex. The Code protects men and women from harassment and discrimination at work, including assumptions about their professional abilities that result from stereotypes about how men and women ”should” behave, dress or interact. The right to equal treatment without discrimination because of sex also applies to gender identity and pregnancy, both of which are the subjects of specific Commission policies and are discussed in more detail below. As well, other prohibited grounds of discrimination such as race, creed, marital status or disability may be intertwined with issues of gender. For persons who are members of more than one protected group, some forms of behaviour could have a greater negative impact.
The following kinds of situations may be found to be discrimination based on sex:
Systemic sex discrimination may be detected by looking at three elements:
There are three specific exceptions to the general right to employment without discrimination because of sex:
i) Pregnancy:The right to equal treatment without discrimination because of sex includes the right to equal treatment without discrimination because a woman is, was or may become pregnant, or because she has had a baby. The Supreme Court of Canada has said that pregnancy is a characteristic that is linked to a woman’s sex, and that discrimination because of pregnancy is discrimination based on sex. It has also said that pregnancy is fundamentally important to society, and the financial and social burdens of having children should not rest entirely on women.[23] Employers share in this social and economic responsibility. Discrimination because of pregnancy is often based on common negative stereotypes and attitudes that:
These ideas are long-standing and persistent, even though they are not borne out by the facts. They may influence employers to refuse to hire pregnant women or women who may become pregnant, fire them, or discourage them from remaining at or returning to the workplace. The protections for "pregnancy" include pre-conception fertility treatments through to the period following childbirth, including breastfeeding. The term "pregnancy" takes into account all of the special needs and circumstances of a pregnant woman, and recognizes that the experiences of women will differ. Pregnancy-related needs can arise from:
Subject to bona fide requirements, denying or restricting a woman’s employment opportunities because she is, was or may become pregnant, or because she has had a baby, is a violation of the Code.
Other work-related practices or behaviours set out in the examples below, may also be discrimination:
Pregnant women have significant legislated rights other than those under the Code, most importantly under the Ontario Employment Standards Act (ESA) and the federal Employment Insurance Act (EIA). These rights may overlap with Code protections, or may provide additional protections. These laws have different purposes from the Code, and are aimed at providing minimum standards only. Where there is a conflict between rights under the Code and rights under other legislation, under section 47 of the Code, the Code has primacy unless the other legislation says that it does not. See also Section II-2: “The Code prevails over other laws.” m) Gender identityAlthough “gender identity” is not currently listed as a distinct ground in the Code, complaints of discrimination may be filed under the ground of “sex.” Gender identity is linked to a person’s intrinsic sense of self, particularly the sense of being male or female. Gender identity may not conform to a person’s birth-assigned sex. A person’s gender identity is different from and does not determine their sexual orientation. The personal characteristics associated with gender identity include self-image, physical and biological appearance, expression, behaviour and conduct, as they relate to gender. A person’s felt identity or core identity may differ in part or in whole from the sex they were assigned at birth. Persons whose birth-assigned sex does not conform to their gender identity include transsexuals, transgenderists, intersexed persons and cross-dressers. The term “transgendered” refers to a range of behaviours linked to a person’s sense of self, based on psychological, behavioural and cognitive factors. It is used by people who reject (or are not comfortable with) their birth-assigned sex. It is not related to a person’s sexual orientation. Complaints related to gender identity are made almost exclusively by transgenderists and transsexuals. Transgenderists are persons who self-identify and live as the opposite gender from their birth-assigned sex, but have decided not to undergo sex-reassignment surgery. Transsexuals are people who have a strong and persistent feeling that they are living in the wrong sex. This term is normally used to describe persons who have undergone sex reassignment surgery. Transgenderists and transsexuals are among the most disadvantaged groups in our society today. People who are transgenderists and transsexuals are vulnerable to harassment and discrimination in the workplace, often arising from hatred, fear and hostility. Denying or restricting employment opportunities because of gender identity is a violation of the Code.
n) Sexual orientationThe Code prohibits discrimination in employment on the basis of sexual orientation. Provisions relating to same-sex partnership have been repealed because there are new definitions of “marital status” and “spouse.” These definitions no longer require that parties to a marriage be of opposite sexes. These changes flowed from the Ontario Court of Appeal’s decision in Halpern v. Attorney General of Canada[24] in which the Court defined marriage as “the voluntary union for life of two persons to the exclusion of all others.” The Government of Canada did not appeal this decision, and Ontario became the first jurisdiction in Canada where same-sex couples could legally marry. In 2005, a number of provincial statutes, including the Code, were amended to change the definitions of spouse and marriage, and remove other heterosexist bias. On July 20, 2005, the federal Civil Marriage Act was signed into law, legalizing same-sex marriage across Canada by defining civil marriage as “the lawful union of two persons to the exclusion of all others.” The Code does not specifically define the term “sexual orientation.” However, the Commission recognizes that sexual orientation is more than simply a “status” that a person possesses – it is an immutable personal characteristic that forms part of an individual’s core identity. This ground encompasses the range of human sexuality from gay and lesbian to bisexual and heterosexual orientations, including intimate emotional and romantic attachments and relationships. Using inappropriate terminology may compound a person’s experience of prejudice, harassment or discrimination. For example, many lesbian and gay people think the term “homosexual” is offensive, and bisexual people may also see it as exclusionary. It is generally best to use terms that individuals self-identify by, such as “bisexual,” “gay,” “lesbian” and “two-spirited.” Most human rights complaints citing the ground of “sexual orientation” are filed by gay and lesbian people. However, the protection of the Code extends to everyone who is denied equal treatment because of sexual orientation. The Code also prohibits discrimination because of gender identity, such as that faced by transsexual, transgendered and intersex persons. These protections are extended on the basis of sex, rather than sexual orientation, and are discussed in Section III-3m: “Gender identity.” “Homophobia” and “heterosexism” are forms of prejudice relating to sexual orientation that imply that heterosexuality is superior or preferable, and is the only right, normal or moral expression of sexuality. “Homophobia” is often defined as the irrational aversion to, or fear or hatred of gay, lesbian or bisexual people and communities, or to behaviours stereotyped as “homosexual.” Homophobia is commonly used to mean a hostile psychological state in the context of open discrimination, harassment or violence against gay, lesbian or bisexual people. “Heterosexism” refers to the assumption that everyone is heterosexual and often gives rise to less open discrimination, which may be unintentional and unrecognized by the person or organization responsible. Despite prohibitions on discrimination and harassment, unfair treatment based on homophobia and heterosexism is widespread and even socially accepted. The Code requires that the Commission and all organizations under its mandate take steps to prevent and appropriately respond to this unfair treatment, and develop a culture of rights that includes lesbian, bisexual and gay people. The Code covers all types of unequal treatment, including differential treatment, the loss of employment, and comments, displays and jokes that may make a person uncomfortable because of sexual orientation.
A person does not actually have to prove that he or she is has a particular orientation or is lesbian, gay, bisexual or heterosexual, as long as it can be shown that there was unequal treatment because of sexual orientation.
As with the other grounds, discrimination based on sexual orientation may be direct, indirect, subtle and/or systemic. Although not specifically mentioned, harassment because of sexual orientation is also prohibited as a form of discrimination. Homophobic name-calling, comments ridiculing people because of their sexual orientation, or singling out someone for humiliating or demeaning "teasing" or jokes related to sexual orientation, would in most cases be viewed as conduct or comments that "ought reasonably to be known to be unwelcome." Homophobic taunts are discriminatory, no matter what perceptions of the harassers or the sexual orientation of the person exposed to such comments.[25]
Graffiti that is tolerated by an employer who does nothing to remove it may be creating a "poisoned environment.” Depending on the circumstances, some persons may be humiliated or may experience feelings of hurt, anger and resentment because of their sexual orientation that are not experienced by others in the same setting. [10] Arzem v. Ontario (Minister of Community & Social Services), 2006 HRTO 17 (CanLII). See also Dudnik v. York Condominium Corp. No. 216 (1990), 12 C.H.R.R. D/325 (Ont. Bd. of Inq.); affirmed (1991) 3 O.R. (3d) 360 (Div.Ct.). Page 2This section describes specific parts of each of the grounds of the Code, and highlights points that are distinctive or particular to each of the grounds. The Commission has developed policies that outline in more detail how the Code applies to grounds such as family status, age (older persons), sexual orientation, race, disability, gender identify, sex (harassment, and also pregnancy and breastfeeding) and language (may be connected to ethnic origin, place of origin, race and ancestry). For a list of Commission policies, refer to Appendix A. a) When grounds intersectA person’s experience of discrimination is often linked to the compounding effects of multiple grounds. Based on their unique combination of identities, people may be exposed to particular forms of discrimination and may experience significant personal pain and social harm that come from such acts of discrimination. For example, a Jewish lesbian with a child and same-sex spouse can be seen as a “mother of a child” or a “Jewish woman” and would be protected under the grounds of marital status, family status, creed and sexual orientation. As lesbians, this woman and her spouse may be exposed to forms of discrimination that other Jewish women with children are not. Similarly, a young Black man can be seen as a “Black person,” or as a “young person,” or as a “man” and is protected under the grounds of race, age and gender. He may be exposed to discrimination based on any of the grounds of race and/or colour, age, and gender on their own. However, he may also be exposed to discrimination on intersecting grounds on the basis of being identified as a “young Black man” based on the various assumptions and/or stereotypes that are uniquely associated with this socially significant intersection.
A person identified by multiple grounds may experience disadvantage that is compounded by the presence of each of the grounds. For example, research confirms that older persons and persons with disabilities face higher unemployment rates. As well, members of racialized groups are more likely to be underemployed. Therefore, an older African Canadian person who is developing a disability will likely face compounded disadvantage when looking for work. These are examples of how an intersectional approach based on the overlap of multiple grounds of discrimination is applied.
b) Protecting persons “associated” with others protected by the CodeIn some cases, the Code can protect people who are not personally identified by one of the grounds. People who are subject to discrimination because of their association with a person protected under the Code can file a complaint based on section 12. The protection in this section applies even if the person could not otherwise claim protection based on one of the grounds, or does not share the same Code grounds as the person they are associated with.
Racial discrimination because of association often arises in terms of inter-racial relationships. In the workplace, it may take the form of harassment or causing a poisoned environment for a woman dating a racialized man. Employees who are discriminated against because they provide care to persons with disabilities commonly file complaints citing “association with a person with a disability” as a ground. The ground of family status may also be cited if it applies. Taking reprisal action against someone who has objected to discriminatory comments aimed at another group may be found to be discrimination because of association.
See also Section III-2d) – “Discrimination because of association” under “What is discrimination?” c) Perceived groundsA person is protected under the Code if they are treated differently in a workplace because of negative characteristics that other people associate with one of the grounds. The question is whether the person is perceived to be a member of a protected group, even if this view is not accurate. This analysis looks at the perceptions, myths and stereotypes underneath a person’s experience and considers the subjective impact of the treatment, rather than the intent behind the treatment.
d) AgeThe Code prohibits discrimination because of age in all social areas including employment. “Age” is defined in section 10(1) as “an age that is 18 years or more.” Discrimination based on age can happen at any time in a person's life. Younger employees may experience discrimination because of negative attitudes and stereotypes about youth and experience. On the other hand, employees may be viewed as “older” and treated poorly in a particular context compared to others who are younger. When the allegation relates to negative attitudes and stereotypes about aging, it may be necessary to think about a person’s age in the context of a particular situation, workplace or group of employees.
In many cases, age discrimination is caused by or linked to ageism. Ageism is a socially constructed way of thinking about persons based on negative stereotypes as well as a tendency to structure society as though everyone is the same age – all old or all young. For example, older persons may experience age discrimination in employment where they may be perceived to have less “career potential” than younger applicants or employees. Younger workers may be belittled and treated with less dignity because they are viewed as expendable resources. i) Discrimination against older employees:Most claims of age discrimination in employment relate to older employees. As a general principle, older workers should be treated as individuals. They should be assessed on their own merits instead of on presumed group characteristics and offered the same opportunities as everyone else in hiring, training and promotion. They should normally work under the same performance management practices as every other worker. Where, however, an older person has in fact slowed down due to age-related health or disability concerns, an employer may have to provide some form of accommodation to him or her, such as reduced work targets. Age, including assumptions based on stereotypes about age, should not be a factor in decisions about layoff or termination. The decision should be based on the person’s actual merits, capacities and circumstances. The following are a few of the many types of situations that might constitute age discrimination against older persons in employment:
ii) Employees under age 18:The Code previously provided for a maximum age limit of 65 in employment along with the existing minimum age requirement of 18 years for all social areas. Such age limits in human rights legislation across Canada have been challenged as offending section 15 of the Canadian Charter of Rights and Freedoms (the Charter), which guarantees the right to equal protection and benefit of the law without discrimination based on age and other grounds. The Code was amended in December 2006 to extend protections for older persons by removing the maximum age limit in employment. However, the Code continues to define age by referring to a minimum age of 18. This definition does not mean that employees have to turn 18 before they are protected under the Code. Employees under age 18 are protected under any of the other grounds in the Code, such as sex, race, disability and so on.
The courts have not yet decided whether employees under age 18 are entitled to remedies based on age discrimination alone, when no other grounds are present. However, there are strong indications that when this issue is litigated, the minimum age cut-off may be found to contravene the Charter and therefore be of no force or effect. For example, in Ontario, there has been one court decision and one interim decision of the Human Rights Tribunal of Ontario where minimum age restrictions for access to services were not applied because they were inconsistent with the Charter.[10] Courts and tribunals would probably do the same for the lower age limit in employment.
As a best practice, employers should make sure to treat employees under age 18 with respect in the workplace, and deal with any age-related concerns as diligently as they would for employees over 18. e) DisabilityAlmost one quarter of all human rights claims filed in employment cite disability as a ground. Because disability-related concerns arise so often, a best practice is for employers to plan for compliance with the Code through measures such as inclusive design, accessibility reviews and developing accommodation policies, as are discussed in Section IV-1a) and IV-1d) – “More about reviewing, preventing and removing barriers related to disability.” These provide a framework for the employer to prevent and address disability-related issues and claims in a timely way. The definition of disability in the Code is very broad. It includes any degree of physical, developmental, mental or learning disability. While the Code sets out various types of conditions, the list does not refer to every type of disability that is covered. A person who is perceived to have a disability is also protected by the Code, even if that person does not have a disability. Section 10(3) of the Code specifically protects persons who have had a disability in the past, as well as people who are believed to have, or have had a disability. The Code ground of disability also specifically protects persons with injuries or disabilities who claim or receive benefits under Ontario’s Workplace Safety and Insurance Act (WSIA). There is no need to prove that the condition itself is a disability, but only that such benefits have been claimed or received or that there is an intention to claim such benefits. The Code is violated if an employer tries to discourage an employee from filing a claim or fires an employee because it believes the employee will file a claim for benefits. This protection exists even if no claim for benefits has actually been made.[11]
It is important to recognize that discrimination because of disability may be based as much on perceptions, myths and stereotypes, as on actual functional limitations.[12] When considering whether a person has been discriminated against because of disability, it is more important to consider how the person was treated than to prove that the person has physical limitations or an ailment. A disability may be the result of a physical limitation, an ailment, a perceived limitation or a combination of all these factors.
The nature or degree of certain disabilities might render them "non-evident" to others. Because these disabilities are not "seen," many of them are not well understood in society. This can lead to stereotypes, stigma and prejudice. Examples might include:
Protection for persons with disabilities under section 10 of the Code clearly includes mental disabilities such as mental illness. The Canadian Psychiatric Association estimates that one in five Canadians will experience mental illness in their lifetime. They describe mental illness as "significant clinical patterns of behaviour or emotions associated with some level of distress, suffering (pain, death), or impairment in one or more areas of functioning (school, work, social and family interactions). At the root of this impairment are symptoms of biological, psychological or behavioural dysfunction, or a combination of these."[13] Persons with mental disabilities face unique challenges – discriminatory barriers affect their ability to compete equally in a job market and result in them being excluded from the workplace. These effects may be magnified for persons identified by more than one Code ground. For example, due to discrimination, an Aboriginal woman with a mental disability may face additional employment obstacles compared to a White man with a mental disability. Once employed, people with mental disabilities may not be able to fully take part in the workplace due to a lack of accommodation or stereotypes and prejudice. Stigma can make a person’s workplace stressful and may trigger or worsen an employee’s mental illness. It may also mean that someone who is having problems and needs help may not seek it, for fear of being labelled.
For more information about disability accommodation, see Section IV-9 – “More about disability-related accommodation” and the Commission’s Policy and Guidelines on Disability and the Duty to Accommodate. For information about mental illnesses in the workplace, see Section IV-9m). f) Family status“Family status” is defined in section 10(1) of the Code as being in a parent and child relationship. Men and women are equally protected under this ground. The ground of family status protects non-biological parent-and-child relationships, such as families formed through adoption, step-parent relationships, foster families, non-biological gay and lesbian parents and all persons who are in a “parent-and-child-type” relationship.
The ground of family status also includes care relationships between adult children and people who stand in parental relationship to them. The protection extends to persons providing eldercare for aging parents, or others in a “parent-type” relationship with the caregiver. For example, a person providing eldercare to a grandparent who played a significant role in his or her upbringing may be protected under the ground of family status. The Code’s protection of family status may overlap with grounds such as marital status, sex (including pregnancy and gender identity) and sexual orientation. It covers a range of family forms, including lone-parent and blended families, and families where parents are in same-sex or common-law relationships. The Supreme Court has also stated that family status discrimination occurs when a person is negatively treated because of a relationship with a particular family member. This means that if an employee is fired from or denied a job because the employer dislikes the employee’s parent or child, the employee has been discriminated against on the basis of family status.[14] Whenever an issue relating to family status is raised, it is important to take into account the intersecting impact of the person’s sex, marital status, sexual orientation, race and age, as well as whether the person or his or her family member has a disability. For more information about this concept, please refer to Section III-3a) – “When grounds intersect.” The Code prohibits treating an employee differently, either directly or unintentionally, because of family status. Employers have a duty to accommodate employees, short of undue hardship, because of their child-care and/or eldercare responsibilities. Employers share social responsibility for providing a workplace that is reasonably flexible to meet the needs of employees with family responsibilities. The Commission recommends that employers recognize and accommodate a broader range of family relationships than those described by the grounds of marital and family status.
The following kinds of stereotypes and biases may give rise to discrimination based on family status:
There is a specific exception to the right to employment without discrimination because of family status. Subsection 24(1)(d) of the Code provides that an employer can withhold or grant employment or advancement in employment to the employer’s or an employee’s spouse, child or parent. This rule allows an employer to support or oppose a narrow range of nepotism in its hiring practices. For more information about the Code and family status, refer to the Commission’s Policy and Guidelines on Discrimination Because of Family Status. g) Marital statusMarital status is defined in section 10(1) of the Code as the status of being married, single, widowed, divorced or separated and includes the status of living with a person in a conjugal relationship outside of marriage (that is, in a “common-law relationship”). The courts have clearly stated that equal protections apply to common-law, same-sex and opposite-sex relationships. This is to make sure that marital status is an irrelevant factor to consider in relation to any of the social areas in the Code. Take care to make sure that policies and actions are not based on, and do not perpetuate, the stereotype that a marriage between a man and woman is of greater value than other types of marital status.
Discrimination based on marital status may also be more subtle than distinctions between the different categories of status, such as married or single.
Marital status includes both the status of the relationship, as discussed above, and the particular identity of the person’s partner or spouse.[15] The Supreme Court of Canada has spoken about focusing on the harm suffered by the individual regardless of whether that individual fits neatly into an identifiable category of persons similarly affected.
There is a specific exception to the right to employment without discrimination because of marital status in subsection 24(1)(d) of the Code. An employer can withhold or grant employment or advancement in employment to the employer’s or an employee’s spouse. This rule allows an employer to support or oppose a narrow range of nepotism in its hiring practices. h) Race and race-related groundsi) Race:Race is a prohibited ground that is not specifically defined. Biological notions of race have been discredited, and there is no legitimate scientific basis for racial classification. Despite this, notions of race continue to exist in society and create differences among groups. This marginalizes some people in society. This social construction of race is termed “racialization” and it remains a potent force in society. Individuals may have prejudices related to people or characteristics that are racialized. In addition to physical characteristics such as colour, the following characteristics are commonly racialized:
The Code prohibits discrimination on several grounds related to race. These include mainly the grounds of colour, ethnic origin, ancestry, place of origin, citizenship and creed (religion). Depending on the circumstances, discrimination based on race may cite race alone or may include one or more related grounds. Each of these grounds is also discussed separately below. The ground of race can encompass the meaning of all of the related grounds, and any other characteristic that is racialized and used to discriminate. In practice, all grounds that may have been factors in a person’s experience should be cited if a human rights claim is made. It is often hard to tell what the basis is for racial discrimination. A First Nations woman may be discriminated against based on the colour of her skin, stereotypes associated with her ethnic origin or her ancestry, or distaste for the practices of her creed, or based on some combination of these factors. All are possibilities and it is often hard to distinguish these in specific instances. In many cases, the discrimination arises only because of the particular combination of grounds. For example, stereotypical and racist views may be held about people’s sexuality based on their ethno-racial identity.
Racist ideology asserts either explicitly or implicitly that one racialized group is inherently superior to others. Racist ideology can be openly displayed in racial slurs, jokes or hate crimes, or it can be more deeply rooted in attitudes, values and stereotypical beliefs. In some cases, these beliefs are unconsciously maintained by individuals and have become deeply embedded in systems and institutions that have evolved over time. Racial stereotypes are typically negative; for example, that racialized employees are lazy, not intelligent, unreliable, dirty, uncivilized, promiscuous, submissive, more likely to abuse drugs or alcohol, of questionable moral character, more likely to engage in criminal activity or do not fit into the workplace. However, in some cases, positive stereotypes may be at play (for example, generalizations that members of a particular group are dutiful employees). There are a number of myths and misconceptions about racism and racial discrimination that make it harder for organizations to respond properly to racial inequality. When putting in place measures to prevent or address racial discrimination in the workplace, employers should take care not to rely on the myths that:
For more information about the Code and racial discrimination, refer to the Commission’s Policy and Guidelines on Racism and Racial Discrimination. ii) Language:Language itself is not a ground. However, it is a characteristic that may be racialized or connected to one of the race-related Code grounds such as ancestry, ethnic origin, place of origin, or in some situations race. There is usually also a link between the accent we speak with and these grounds.
Employers cannot discriminate against employees based on language or accent, unless these requirements can be established to be genuine and made in good faith. If proficiency in a particular language is a requirement for a position, the employer would need to be able to show that the requirement is linked to the essential duties of the position, is imposed in good faith and takes into account the duty to accommodate to the point of undue hardship.
For more information about the Code and language, refer to the Commission’s Policy on Discrimination and Language and the Policy and Guidelines on Racism and Racial Discrimination. iii) Colour:“Colour” is listed as a ground in the Code but is an undefined term. A person’s skin colour can be seen as a physical feature that is commonly racialized. For the purposes of analysis, colour is a ground that may be encompassed by the concept of race and the principles described above. iv) Ancestry and ethnic origin:The Code provides protection from discrimination in employment because of “ancestry” and “ethnic origin.” These terms are not defined in the Code. Complainants usually identify themselves as having a particular ancestry or ethnic origin in a complaint. The terms “ethnic origin” and “ancestry” are sometimes used interchangeably. However, ancestry is closely related to “whom” you are descended from. An ancestor is someone a person is descended from, and is usually more distant than a grandparent. One’s ancestry may originate from more than one cultural group. Statistics Canada states that “ethnic origin” refers to the cultural origins of a person’s ancestors.[16] Ethnic origin encompasses a wider range of characteristics than ancestry and also includes ancestry. Webster’s Dictionary[17] defines “ethnic” as “of or relating to large groups of people classed according to common racial, national, tribal, religious, linguistic or cultural origin or background.” Ancestry and ethnic origin should not be confused with citizenship, nationality or language spoken. In the Code, the ground of ethnic origin overlaps with a more commonly used term, “ethnicity,” which refers to a shared cultural heritage or nationality. Ethnic groups might be distinguished on the basis of cultural traits such as language or shared customs around family, food, dance and music. People who share an ethnic origin, ethnicity or ancestry may or may not share the same racial identity.[18]
v) Place of origin:People should not be discriminated against or harassed because they are from outside Canada. The Code may even cover people from a particular place within Canada. A person’s place of origin is often related to other grounds in the Code, such as ethnic origin or race. A job advertisement or hiring process may violate the Code if it limits the opportunity to people with “Canadian experience.” Such a requirement can have an adverse impact on recent immigrants to Canada who may lack Canadian experience, even though they may be rich in non-Canadian experience and qualified to do the job. i) CitizenshipIndividuals should not be treated differently or harassed in employment because of their citizenship, whether Canadian or otherwise. It is illegal for employers to make distinctions between Canadian citizens, citizens from other countries, persons with dual citizenship, landed immigrants or permanent residents, refugees and non-permanent residents. Employers should only be concerned with whether a person has legal status to work in Canada, rather than whether the person is a Canadian citizen, except in the narrow exceptions provided by section 16 of the Code, discussed below. People can either be Canadian citizens “by birth” or “by naturalization.” “By birth” means that a person was either born in Canada or born outside Canada if, at the time of his or her birth, one or both parents were Canadian citizens and had retained Canadian citizenship. “Naturalization” means that a person was born in another country and immigrated to Canada, has become a Canadian citizen, and has been issued a Canadian citizenship certificate. Human rights law does not distinguish between the two categories. “Permanent residents” or people with “landed immigrant” status have been granted the right to live in Canada permanently by immigration authorities, but have not yet got Canadian citizenship. Some are recent arrivals, while others have resided in Canada for many years. “Non-permanent residents” are people from another country who live in Canada and have work, student or Minister's permits, or who are claiming refugee status in Canada. Human rights law makes no distinction between permanent residents, non-permanent residents and Canadian citizens except in specific circumstances, noted below.
Section 16 of the Code provides for exceptions to the general rule of non-discrimination in employment because of citizenship. An employer is allowed to discriminate based on citizenship in the following three specific situations:
Canadian organizations operating in Ontario are bound by the Code and should not restrict access to employment based on citizenship. Human rights complaints have been filed in situations where citizenship has been used to deny or restrict access to employment in the defence contracting sector, where there is an opportunity to obtain a waiver or security clearance for all workers on a project.
j) CreedEmployees are entitled to the protections of the Code under the ground of creed, both as individuals and as members of a group. Religion or “creed” is not a defined term in the Code. The Commission interprets creed to mean “religious creed" or "religion." It includes faith, beliefs, observances or worship. A belief in a God or gods, or a single supreme being or deity is not a requisite. For example, the Human Rights Tribunal of Ontario has held that practitioners of Falun Gong are protected under the ground of creed.[19] Religion may be broadly interpreted to include non-deistic bodies of faith, such as the spiritual faiths/practices of Aboriginal cultures, as well as newer religions (assessed on a case by case basis). The key test for the existence of a creed-based right is if the beliefs and practices are sincerely held and/or observed. The Code protects personal religious beliefs, practices or observances, even if they are not considered by others, even a majority of people of the same religion, to be essential elements of the creed. For example, mainstream Jewish organizations may indicate that it is not a basic tenet of Judaism that one must build a small hut or “succah” on one’s property during the holiday of Sukkot. However, if one individual sincerely believes that this is a religious requirement, this person is protected under the ground of creed.[20] Creed does not include secular, moral or ethical beliefs or political convictions.[21] It does not extend to religions that incite hatred or violence against other individuals or groups, or to practices and observances that claim to have a religious basis but which contravene international human rights standards or criminal law. Atheists, who deny the existence of God, and agnostics, who believe that nothing is known or likely to be known about the existence of God, may have the Code’s protection if an employer seeks to impose religious views or create a religious environment in the workplace that is incompatible with agnostic or atheist beliefs. The right to equal treatment on the ground of creed under the Code has two important principles:
Everyone in the workplace has the right to have his or her religious beliefs and practices respected and accommodated. Employees must start this process by asking for accommodation. Employers must meet an employee’s religious needs unless it would cause undue hardship. Undue hardship takes into consideration cost, outside sources of funding and health and safety. For more discussion on accommodation and creed, refer to section IV-8f ii: “Creed – accommodating employees’ religious needs”. There are exceptions to the general right of non-discrimination in employment because of creed:
Situations may arise where protecting rights related to creed may clash with protecting other rights such as, for example, the right to freedom from discrimination on the basis of sex or sexual orientation. The Supreme Court of Canada has stated that the right to freedom of religion is not unlimited. It is subject to such limitations as are necessary to protect public safety, order, health, morals or the fundamental rights and freedoms of others.[22] Where such conflicts arise, the rights must be balanced: neither freedom of religion nor guarantees based on sexual orientation are absolute. In striking such a balance, the Supreme Court of Canada has noted that although the freedom of belief may be broad, the freedom to act upon those beliefs is considerably narrower. It is one thing for a person to hold negative beliefs about sexual orientation based on his or her creed; it is another thing for that person to act in a discriminatory way towards others because of those beliefs. k) Record of offencesA person cannot be discriminated against in employment because of a “record of offences.” Record of offences is narrowly defined in subsection 10(1) of the Code to mean a conviction for:
Therefore, employment decisions cannot be based on whether a person has been convicted and pardoned for an offence under a federal law, such as the Criminal Code, or convicted under a provincial law, such as the Highway Traffic Act. This provision applies to convictions only, and not to situations where charges only have been laid. Before refusing employment to a person or taking a conviction into account, the employer should take steps to determine if a pardon has been granted or if it is a provincial offence. If so, the prohibition in the Code applies. Subsection 24(1)(b) of the Code states that an employer can refuse to hire someone based on a record of offences if they can show that this is a reasonable and bona fide qualification. As is discussed further in Section IV-2 – “Setting job requirements,” to be a reasonable and bona fide qualification, the requirement must be rationally connected to, and necessary for, job performance. To get this exception, the employer must show that the circumstances of the individual cannot be accommodated without creating undue hardship, considering costs, funding and health and/or safety risks. Before taking a record of offences into account in hiring decisions, the employer should conduct an individual assessment of the information before it and the requirements of the position. An employer may wish to consider the following types of questions:
Each job situation and employee or potential employee must be assessed individually. An employer would likely be able to prove that not having a record of a pardoned offence or provincial offence is a bona fide requirement in the following cases:
On the other hand, it would be more difficult for the employer to make the same argument in other cases.
l) SexThe ground of “sex” is not specifically defined in the Code, although it is generally considered to be related to a person’s biological sex, male or female. Men and women receive equal protection under this ground. The ground of “sex” also includes a broader notion of “gender,” which can be described as the social characteristics attributed to each sex. The Code protects men and women from harassment and discrimination at work, including assumptions about their professional abilities that result from stereotypes about how men and women ”should” behave, dress or interact. The right to equal treatment without discrimination because of sex also applies to gender identity and pregnancy, both of which are the subjects of specific Commission policies and are discussed in more detail below. As well, other prohibited grounds of discrimination such as race, creed, marital status or disability may be intertwined with issues of gender. For persons who are members of more than one protected group, some forms of behaviour could have a greater negative impact.
The following kinds of situations may be found to be discrimination based on sex:
Systemic sex discrimination may be detected by looking at three elements:
There are three specific exceptions to the general right to employment without discrimination because of sex:
i) Pregnancy:The right to equal treatment without discrimination because of sex includes the right to equal treatment without discrimination because a woman is, was or may become pregnant, or because she has had a baby. The Supreme Court of Canada has said that pregnancy is a characteristic that is linked to a woman’s sex, and that discrimination because of pregnancy is discrimination based on sex. It has also said that pregnancy is fundamentally important to society, and the financial and social burdens of having children should not rest entirely on women.[23] Employers share in this social and economic responsibility. Discrimination because of pregnancy is often based on common negative stereotypes and attitudes that:
These ideas are long-standing and persistent, even though they are not borne out by the facts. They may influence employers to refuse to hire pregnant women or women who may become pregnant, fire them, or discourage them from remaining at or returning to the workplace. The protections for "pregnancy" include pre-conception fertility treatments through to the period following childbirth, including breastfeeding. The term "pregnancy" takes into account all of the special needs and circumstances of a pregnant woman, and recognizes that the experiences of women will differ. Pregnancy-related needs can arise from:
Subject to bona fide requirements, denying or restricting a woman’s employment opportunities because she is, was or may become pregnant, or because she has had a baby, is a violation of the Code.
Other work-related practices or behaviours set out in the examples below, may also be discrimination:
Pregnant women have significant legislated rights other than those under the Code, most importantly under the Ontario Employment Standards Act (ESA) and the federal Employment Insurance Act (EIA). These rights may overlap with Code protections, or may provide additional protections. These laws have different purposes from the Code, and are aimed at providing minimum standards only. Where there is a conflict between rights under the Code and rights under other legislation, under section 47 of the Code, the Code has primacy unless the other legislation says that it does not. See also Section II-2: “The Code prevails over other laws.” m) Gender identityAlthough “gender identity” is not currently listed as a distinct ground in the Code, complaints of discrimination may be filed under the ground of “sex.” Gender identity is linked to a person’s intrinsic sense of self, particularly the sense of being male or female. Gender identity may not conform to a person’s birth-assigned sex. A person’s gender identity is different from and does not determine their sexual orientation. The personal characteristics associated with gender identity include self-image, physical and biological appearance, expression, behaviour and conduct, as they relate to gender. A person’s felt identity or core identity may differ in part or in whole from the sex they were assigned at birth. Persons whose birth-assigned sex does not conform to their gender identity include transsexuals, transgenderists, intersexed persons and cross-dressers. The term “transgendered” refers to a range of behaviours linked to a person’s sense of self, based on psychological, behavioural and cognitive factors. It is used by people who reject (or are not comfortable with) their birth-assigned sex. It is not related to a person’s sexual orientation. Complaints related to gender identity are made almost exclusively by transgenderists and transsexuals. Transgenderists are persons who self-identify and live as the opposite gender from their birth-assigned sex, but have decided not to undergo sex-reassignment surgery. Transsexuals are people who have a strong and persistent feeling that they are living in the wrong sex. This term is normally used to describe persons who have undergone sex reassignment surgery. Transgenderists and transsexuals are among the most disadvantaged groups in our society today. People who are transgenderists and transsexuals are vulnerable to harassment and discrimination in the workplace, often arising from hatred, fear and hostility. Denying or restricting employment opportunities because of gender identity is a violation of the Code.
n) Sexual orientationThe Code prohibits discrimination in employment on the basis of sexual orientation. Provisions relating to same-sex partnership have been repealed because there are new definitions of “marital status” and “spouse.” These definitions no longer require that parties to a marriage be of opposite sexes. These changes flowed from the Ontario Court of Appeal’s decision in Halpern v. Attorney General of Canada[24] in which the Court defined marriage as “the voluntary union for life of two persons to the exclusion of all others.” The Government of Canada did not appeal this decision, and Ontario became the first jurisdiction in Canada where same-sex couples could legally marry. In 2005, a number of provincial statutes, including the Code, were amended to change the definitions of spouse and marriage, and remove other heterosexist bias. On July 20, 2005, the federal Civil Marriage Act was signed into law, legalizing same-sex marriage across Canada by defining civil marriage as “the lawful union of two persons to the exclusion of all others.” The Code does not specifically define the term “sexual orientation.” However, the Commission recognizes that sexual orientation is more than simply a “status” that a person possesses – it is an immutable personal characteristic that forms part of an individual’s core identity. This ground encompasses the range of human sexuality from gay and lesbian to bisexual and heterosexual orientations, including intimate emotional and romantic attachments and relationships. Using inappropriate terminology may compound a person’s experience of prejudice, harassment or discrimination. For example, many lesbian and gay people think the term “homosexual” is offensive, and bisexual people may also see it as exclusionary. It is generally best to use terms that individuals self-identify by, such as “bisexual,” “gay,” “lesbian” and “two-spirited.” Most human rights complaints citing the ground of “sexual orientation” are filed by gay and lesbian people. However, the protection of the Code extends to everyone who is denied equal treatment because of sexual orientation. The Code also prohibits discrimination because of gender identity, such as that faced by transsexual, transgendered and intersex persons. These protections are extended on the basis of sex, rather than sexual orientation, and are discussed in Section III-3m: “Gender identity.” “Homophobia” and “heterosexism” are forms of prejudice relating to sexual orientation that imply that heterosexuality is superior or preferable, and is the only right, normal or moral expression of sexuality. “Homophobia” is often defined as the irrational aversion to, or fear or hatred of gay, lesbian or bisexual people and communities, or to behaviours stereotyped as “homosexual.” Homophobia is commonly used to mean a hostile psychological state in the context of open discrimination, harassment or violence against gay, lesbian or bisexual people. “Heterosexism” refers to the assumption that everyone is heterosexual and often gives rise to less open discrimination, which may be unintentional and unrecognized by the person or organization responsible. Despite prohibitions on discrimination and harassment, unfair treatment based on homophobia and heterosexism is widespread and even socially accepted. The Code requires that the Commission and all organizations under its mandate take steps to prevent and appropriately respond to this unfair treatment, and develop a culture of rights that includes lesbian, bisexual and gay people. The Code covers all types of unequal treatment, including differential treatment, the loss of employment, and comments, displays and jokes that may make a person uncomfortable because of sexual orientation.
A person does not actually have to prove that he or she is has a particular orientation or is lesbian, gay, bisexual or heterosexual, as long as it can be shown that there was unequal treatment because of sexual orientation.
As with the other grounds, discrimination based on sexual orientation may be direct, indirect, subtle and/or systemic. Although not specifically mentioned, harassment because of sexual orientation is also prohibited as a form of discrimination. Homophobic name-calling, comments ridiculing people because of their sexual orientation, or singling out someone for humiliating or demeaning "teasing" or jokes related to sexual orientation, would in most cases be viewed as conduct or comments that "ought reasonably to be known to be unwelcome." Homophobic taunts are discriminatory, no matter what perceptions of the harassers or the sexual orientation of the person exposed to such comments.[25]
Graffiti that is tolerated by an employer who does nothing to remove it may be creating a "poisoned environment.” Depending on the circumstances, some persons may be humiliated or may experience feelings of hurt, anger and resentment because of their sexual orientation that are not experienced by others in the same setting. [10] Arzem v. Ontario (Minister of Community & Social Services), 2006 HRTO 17 (CanLII). See also Dudnik v. York Condominium Corp. No. 216 (1990), 12 C.H.R.R. D/325 (Ont. Bd. of Inq.); affirmed (1991) 3 O.R. (3d) 360 (Div.Ct.). |