The Ontario Human Rights Code (Code) states that every person has a right to equal treatment with respect to employment without discrimination or harassment because of race, sex, disability, and age, to name a few of the 17 prohibited grounds.
The Code provides equal rights and opportunities to all persons aged 18 and over because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, a record of offences, marital status, family status or disability.
The right to “equal treatment” concerning employment covers every aspect of the workplace environment and employment relationship, including job applications, recruitment, training, transfers, promotions, apprenticeship terms, dismissal, and layoffs.
Under the Code, organizations are required to prevent and remove barriers, and provide accommodation to the point of undue hardship. The principle of accommodation arises most frequently in the context of creed, family status, sex (pregnancy) and disability, as well as age, gender identity and gender expression. You may be wondering what undue hardship means? If an accommodation creates onerous conditions for an employer such as intolerable financial costs or serious disruption to the business, then it may be considered undue hardship.
Employers are expected to make reasonable accommodations until the point of undue hardship. Depending on the situation, if an employer is found not to have not made a reasonable effort to accommodate an employee, then the employee may have grounds for filing a human rights complaint, claiming they have been discriminated against under one or more of the prohibited grounds. Each case is unique and requires different solutions.
Employers have the primary obligation to make sure their workplace is free from discrimination and harassment and proactively provide a workplace where employees feel they are respected and afforded equal opportunities.
Despite proactive measures to prevent human rights complaints, human rights issues will arise from time to time. It is important that employers respond to allegations of human rights violations in a timely and effective manner.
Employers should implement processes and policies to address harassment and discrimination complaints.
A company policy should outline the company’s position on harassment and discrimination, including a description about what these terms mean. The policy should also include information about the process for filing a complaint and outline the investigation process. The disciplinary process should also be included in the event an employee is found to have violated the policy after an investigation has been conducted. Training should be provided to all employees on the policy.
Discrimination is not defined in the Code, but some elements are typically included, such as:
- not individually assessing the unique merits, capacities, and circumstances of a person
- not making stereotypical assumptions based on a person’s presumed traits
- not excluding persons, denying benefits, or imposing burdens.
Some people believe that discrimination does not exist if the impact was not intended or if there were other factors associated that could explain a particular situation that has arisen. This is wrong. Most cases of discrimination take place without the intent to harm. Generally, there is an overlap between discrimination and other legitimate factors.
COVID-19 and Vaccines
Canadian employers are eager to know whether they can implement a mandatory vaccination policy, and if so, how this policy affects human rights and privacy considerations. At the moment, there is no legislation around this topic, and so as things stand, employers cannot force their employees to be vaccinated. However, some employers in some settings can create workplace policies that require vaccination (healthcare workers for example) in order to work in certain settings and only if the policy is reasonably necessary.
If an employee refuses to be vaccinated and the reason falls under one of the prohibited grounds of the Code, such as a medical condition or religious beliefs to name a few, then the employer must attempt to provide reasonable accommodation, unless it poses undue hardship.
Human Rights Tribunal of Ontario (HRTO)
The HRTO deals with all claims of discrimination filed under the Code. HRTO requires that parties first attempt to resolve complaints through mediation or adjudication.
If a complaint of harassment or discrimination has occurred at a workplace or business setting, it sets off a legal chain of events that must take place. Otherwise, a company may find itself liable if found complacent after a complaint has been made. These steps include:
- Taking all complaints seriously
- Acting promptly about a complaint after it is received
- Applying appropriate resources to resolve complaints
- Having a viable complaint mechanism in place
- Ensuring the investigation is conducted in a fair and impartial manner and each party is provided the opportunity to present their side of the story
There is no reprisal for the employee for having filed a complaint and all decisions and actions taken must be communicated to all involved parties.
Once a case has been passed on to HRTO, parties involved may represent themselves, but typically achieve a higher success rate with proper legal representation. A legal representative will gather evidence, take statements and affidavits, and offer expert advice to help you attain the best possible outcome.
At HR Enable, we are proud to offer the services of a Licensed Paralegal to assist with these human rights issues. Contact our office today to learn more about how HR Enable can help you and your business navigate human rights complaints through our experienced representation.